Vignelli Estate Claims Former Employee Had No Right to Publish Book about Famous Designer

The estate of Lella and Massimo Vignelli, represented by their daughter Valentina Vignelli, and Vignelli Designs, which hold the intellectual property rights in the Vignellis’designs, have filed a copyright and trademark infringement suit in the Southern District of New York against publishers Rizzoli and Mondadori, and Beatriz Cifuentes, a former employee of the Vignellis.

The case is The Estate of Massimo and Elena Vignelli et al v. Rizzoli International Publications, Inc. et al, No 1:19-cv-01584.

Defendants are the publishers and the author of a book published last October, which allegedly used without permission 102 original sketches made by Massimo Vignelli and misrepresented that the book was co-designed by Massimo Vignelli and is endorsed by the Vignelli Estate.

Lella and Massimo Vignelli

Lella and Massimo Vignelli’s designs are known by New York subway riders as the couple designed the now iconic subway signage. The map designed in 1972 is no longer in use, as many riders complained it was difficult to understand, but the train numbers of the lines are still in use. The Vignellis also designed Bloomingdale’s logo and its brown paper shopping bag. Some of their works are part of the MoMA collections.  

They worked together in New York until Massimo Vignelli’s death in 2014. Lella Vignelli died two years later. Their estate is now handling their intellectual property rights.

The 1990 book

Massimo Vignelli often designed books and even wrote a book about the topic, “The Vignelli Cannon.” In 1990, he designed a book published by Rizzoli, “design:Vignelli” and also designed the logo on the cover. Plaintiff claims that this logo “became the distinctive trade dress of the VIGNELLI brand.” In any case, Massimo Vignelli retained the intellectual property rights in it.

The book is registered with the U.S. Copyright Office as a compilation of the texts and photos and contains testimonies about the Vignellis’ work from various writers and photographers. These contributors retained their own rights.

The 2018 book

Beatriz Cifuentes joined Vignelli Associates in 2004 and worked there as a graphic designer. After Lella Vignelli died, and according to the couple’s wishes, the Vignellis’ professional artifacts and a portion of their personal artifacts were sent to the Vignelli Archives.

According to the complaint, the Vignellis’ children found out at that time that Beatriz Cifuentes had kept personal property belonging to Massimo Vignelli that needed to be returned to the Vignelli Archive, including some sketches, which had not yet been published, but which were published in the 2018 book.

Beatriz Cifuentes wrote in the introduction to the 2018 book “on his death bed, Massimo [Vignelli] made [her] promise [she] would finish the book.” However, according to the Complaint, Massimo Vignelli’s will does have a provision about the book.

The copyright infringement claims

The Complaint alleges that permission was not sought to use material for this book, and that Defendants had denied their requests to remove Massimo Vignelli’s name from the design credit, to include an “erratum slip” and to make sure that the press releases and promotional material were corrected.

It also alleges that Defendants reproduced without permission works authored by Massimo Vignelli, and also reproduced essays and photographs of third parties without their permission [these third parties are not parties to this suit, at least not yet. This is a classic copyright infringement claim.

The 1990 book is registered as a compilation, which are protectable by copyright. The Copyright Act defines them as being “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” However, as explained by the Copyright Office in 2012, such compilation must result in one or more of the congressionally-established categories of authorship to be registered.  This is the case here, as the book is a literary work and also features graphic works.

Plaintiffs also allege that “Defendants prepared a compilation using unpublished works of Massimo Vignelli that were obtained without Plaintiffs’ authorization and then published by Defendants for the first time with the release of the 2018 Book on October 23, 2018.”

Unpublished works can be protected by copyright. Nevertheless, it is the author who has the exclusive right to publicly display the work. Beatriz Cifuentes claims that Massimo Vignelli wanted her to publish his works. This will be important to prove as a defense to the suit. Defendants could still claim fair use, whether permission to publish was granted or not. However, the Supreme Court explained in 1985 that the courts are less likely to find fair use if the work was unpublished, Harper & Row Publishers, Inc. v. Nation Enters. As a reminder, U.S. copyright law provides a very limited moral right to visual artists. Italian law, however, provides such rights, and it will be interesting to see if Plaintiffs will try to access it.

Plaintiffs are asking the court, inter alia, to permanently enjoin Defendants from further copying, marketing, publishing, selling, making derivative works, or otherwise commercially exploiting the works and the 2018 book.

The Defendants may now choose to defend themselves in court, or to settle.

Photo is courtesy of Flickr user Jonathan Wilsson under a CC BY-NC 2.0 license.

French and Faux? Balenciaga or JFK Souvenir Shop?

You may have heard of high and low fashion styling, where we are urged to wear our diamond tiara with a Zara top.  This story is a twist on the theme, as Balenciaga offers you a way to spend some serious money on a leather bag somewhat similar to plastic bags sold in New York City souvenir shops and airport stores. Copyright infringement suit ensued. The case is City Merchandise, Inc., v. Balenciaga America, Inc., 1:18-cv-06748 (SDNY).

City Merchandise, a New York City company designing souvenirs goods had created a plastic bag featuring the New York skyline over a pink sky, and the words NEW YORK CITY towering above the image. This how Plaintiff’s attorney describes it in the complaint, in legal yet poetic prose:

“Design encompasses a collage of portions of recognized NYC landmarks prominently featured in the forefront with several other buildings interspersed therein. The Design also features an airbrushed hot pink sky, accented with clouds. In addition, large, purple, fanciful cursive letters, unevenly bordered in white, float above the skyline. The letters opulently glisten and fittingly read, "New York City".”

Source: Balenciaga

The design was used by Plaintiff on several models, a tote, a coin purse, which Plaintiff started selling in late 2014, early 2015. This season, Balenciaga sold a bag and a hoodie, featuring a New York skyline over a pink sky, and the words NEW YORK CITY in a font in large cursive letters. City Merchandise deemed these goods to be infringing and filed a copyright infringement suit in the Southern District of New York against Balenciaga. 

Is it copyright infringement?

City Merchandise’s design is registered with the Copyright Office. It is certainly original enough to be protected by copyright (remember, one only needs a “modicum” of originality for a work to be protected by copyright).

Featuring landmark buildings on a design, such as the Empire State Building, the Flatiron Building and the Freedom Tower, along with the Statue of Liberty (technically in New Jersey harbor, but still a New York symbol) is not original per se, but the way the buildings are placed, the use of a bright pink sky, the fanciful font used for NEW YORK CITY, all make the design original enough to be protected by copyright.

Balenciaga’s design features the same buildings, but shown from different angles, and arranged in a somewhat different way: for instance, the Statue of Liberty is at the left in Balenciaga’s design, whereas it is featured at the right of Plaintiff’s design.

Plaintiffs claim that the “total concept and feel” between its original design and Balenciaga’s are identical. Courts in the Second Circuit apply an "ordinary observer test to determine if two works are substantially similar, but apply a “more discerning test” if works have both protectible and unprotectible elements or if, as in our case, copying is not exact. Judges then mustn’t dissect the works into separate components and compare only copyrightable or similar elements, but must instead compare the allegedly infringing design’s “total concept and overall feel'” with that of the original design.

Could Balenciaga assert fair use as a defense? Interestingly, the fourth fair use factor, the effect on the market, would likely be in Defendant’s favor, as using the protected design on goods sold in the luxury category would indeed have effect on the market, but a positive one (I will look for the original bag next time I am at JFK!).

The economic purpose of copyright

You may remember Balenciaga offering for sale its own version of the blue Ikea bag, and Ikea’s humorous response. One of Plaintiff’s exhibits, an article about this episode explains that Balenciaga also reproduced in leather a colorful Thai laundry bag originally made out of plastic. 

Plaintiff’s bags retail from $19.99 to $5.99, while buying Balenciaga’s versions will set you backfrom $500 to $2,000. Does Plaintiff lose its economic incentive to create a design if a third party use it to make a more expensive version? Copyright law does not care about the price of the object, and a Van Gogh is protected as well as a pattern used for airplane interiors.

Balenciaga saved costs by not having to create the design. It probably did not copy the design to save money, to “free ride”, but more likely to comment on “what makes fashion fashion”: is it the design, or is fashion and style in the eye of the beholder?  After all, Balenciaga head designer is Demna Gvasalia, who became famous thanks to his Vetement brand, which once famously sold once a DHL tee-shirt.

Balenciaga seems to use now tourist goods to comment on fashion: it currently sells a Paris sweatshirt, resembling those found at Parisian tourist shops and showed in its Fall 2018 a model wearing a World Food Program sweat shirt and fanny pack. Reverse snobbism?  Copyright infringement? Or both?

Former Professional Wrestler Sues Van Morrison for Using his Likeness without Authorization

Billy Two Rivers, a former professional wrestler, is suing musician Van Morrison and his record label company, claiming that, by using his likeness on the cover of the upcoming Roll With the Punches album, they infringed his right of publicity, as protected by New York State’s statutory right to publicity, New York Civil Rights Law §§ 50 and 51, and false endorsement under the Trademark act. The case is Two Rivers v. Morrison, 1-17-cv-05720 (Southern District of New York).

To say that Plaintiff has had an interesting life is an understatement, as he was a professional wrestler from 1953 to 1977, competing in Canada, the U.S. and abroad. He appeared in ten films and television programs. After retiring, he was for 20 years a leader of the Mohawk nation on the Kahnawake reservation, as an elder and a counselor. He is still recognized as an elder and advisor to the First Nations people. The British band The Dogs D’Amour named a song after him in 1988, and Pulitzer Prize-winner Paul Muldoon wrote a poem, “My Father and I and Billy Two Rivers”, about watching Plaintiff competing in a wrestling match. A British racing horse was named after him, with Plaintiff’s consent. 

Roll With the Punches will be Van Morrison’s 37^th studio album and is set for release on September 22, 2017. Its cover features a black and white photo of Plaintiff engaged in a wrestling match. The cover of the album was used to promote Van Morrison’s tour, and generally to promote the sale of the album, both online and off-line. Plaintiff claims he did not authorize the use of this photo for the album cover. The complaint alleges that he was not even contacted by Defendants.

New York Civil Rights Law § 50, enacted in 1903, makes it a misdemeanor for “[a] person, firm or corporation [to use] for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian...” We saw in a former post that the New York Legislature is actively trying to expand the scope of the law. However, Plaintiff does not need such expansion to file his suit. If the fact alleged in the complaint can be proven, it is a clear case of unauthorized use of likeness for commercial purposes.

Plaintiff is asking the court to enjoin any further use or dissemination of the cover, and to permanently dispose of the albums already produced. He is also asking the court to award him punitive damages.  The case just settled out of court.

Fair Use? It’s in the bag

On December 22, 2016, the Second Circuit affirmed the January 6, 2016 order from Judge Furman of the Southern District of New York (SDNY), which had found that the use of the Louis Vuitton logo and the representation of the Louis Vuitton bags on fabric totes was fair use. The maker of the tote, My Other Bag (MOB), was represented by David Korzenik, my former Entertainment Law professor at Cardozo School of Law, who encouraged all his students to write and publish and first gave me the idea to write about law.

Louis Vuitton famously designs and sells luxury bags carrying its LV logo. These bags are often seen in first class airport lounges all around the world, or so I’ve been told, but is it wise to use them as gym bags or shopping bags? The founder of MOB, Tara Martin, wondered, like all of us, if one should carry one’s Louis Vuitton bucket bag to go grocery shopping, considering, after all, that one Louis Vuitton bag was originally designed to carry champagne bottles (the French are so clever, non?)

Ms. Martin’s answer was to create fabric totes with one side representing a somewhat cartoonish rendition of a famous luxury bag, such as Hermès’ Kelly bag, Chanel’s matelassé bag, and several models of Louis Vuitton bags, while the other side read “My Other Bag is…”This phrase is inspired by the “My other car is a Jaguar/a Mercedes…” bumper stickers which were once ubiquitous on automobiles of a somewhat less expensive nature. The Louis Vuitton ‘LV’ logo are replaced on the MOB totes by the initials MOB and are sold from $35 to $55.

Source: http://www.myotherbag.com

Louis Vuitton considered this use to be infringing and filed a suit against MOB, claiming trademark dilution, trademark infringement, and copyright infringement. MOB moved for summary judgment, which was granted on all points by Judge Furman from the SDNY.

As this blog concentrates on copyright, I will only address this particular issue in this case (I wrote about the trademark issues of the case here). Judge Furman had examined all the four fair use factors and found the use of the copyrightable elements of Louis Vuitton’s prints to be fair use.

Judge Furman from the SDNY: it is a parody and it is fair use

The first factor, the purpose and character of the use, was in favor of MOB, even though the use is commercial, because the use is a parody, which, “even when done for commercial gain, can be fair use” (at 445). Judge Furman found that that the second factor, the nature of the copyrighted work, was not of much help, as a parody almost invariably copy publicly known, expressive works. The third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, was found by Judge Furman to be reasonable in relation to the purpose of the use, because “MOB's totes must successfully conjure Louis Vuitton's handbags in order to make sense”(at 445).

As for the fourth factor, the effect of the use upon the potential market, Judge Furman had found that even though

“MOB's totes are, in an abstract sense, in the same market as Louis Vuitton's handbags, its totes do not "serve[] as a market replacement for" Louis Vuitton's bags in a way that would make "it likely that cognizable market harm to [Louis Vuitton] will occur… [as] any reasonable observer would grasp that the whole point of MOB's invocation of the "my other car..." trope is to communicate that MOB's totes are not replacements for Louis Vuitton's designer handbags. See Cariou v. Prince, 714 F.3d 694, 707 (2d Cir.2013) ("What is critical [in evaluating a fair use defense] is how the work in question appears to the reasonable observer.") (at 445).

The Second Circuit: the use is transformative

The Second Circuit reviewed the summary judgment de novo and affirmed both the award of summary judgment to MOB on Louis Vuitton’s trademark infringement claim, trademark dilution claim, and copyright infringement claim.

The Second Circuit found that MOB's use of Louis Vuitton’s designs was a parody which “produces a “new expression [and] message” that constitutes transformative use…. Like the district court, we conclude that the remaining fair-use factors either weigh in MOB's favor or are irrelevant, see Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F. Supp. 3d at 444–45, and LV's arguments to the contrary largely repeat or echo those we have already rejected.”

This case signals that the Second Circuit is continuing to affirm the importance for a court to assess whether a particular use is transformative when deciding whether a particular use is fair use or not.

New York Fashion Company Sued Over Use of Photograph on Instagram

On September 27, 2016, Matilde Gatoni, a French-Italian photographer based in Milan, filed a copyright infringement suit against New York fashion company Tibi in the Southern District of New York (SDNY). Plaintiff alleges that Tibi reproduced without authorization one of her photographs (the Photograph) by posting it on its Instagram account.

Ms. Gatoni regularly posts photographs on her Instagram account. On August 26, 2016, she posted a picture of a building in Essaouira, Morocco. The building is seen from the street, where it commands a corner and the Photograpgh allows the viewer to see it on both sides, which are painted in blue, yellow, white and pink. A woman wearing a long flowing dress in the same color tones of the walls is seen from the back at the right of Photograph. The posting on Instagram was the first publication of the Photograph.

Defendant Tibi also has an Instagram account. The complaint alleges that the fashion company reproduced the Photograph by cropping it and posting it on its own Instagram account, without Plaintiff’s authorization. Exhibit D shows the picture as allegedly posted on Instagram. The picture has been cropped on the right side and on the lower side,  cutting the woman off and making the pink part of the wall the center of the image.

Plaintiff is seeking damages and Defendant’s profits pursuant to 17 U.S.C. § 504(b) for the alleged infringement, and statutory damages up to $150,000 per work infringed for Defendant’s willful infringement of the Photograph, pursuant to 17 U.S.C. § 504(c).

Complaint also alleges that Tibi “intentionally and knowingly removed copyright management information identifying Plaintiff as the owner of the Photograph,” in violation of Section 1202(b) of the Digital Millennium Copyright Act, which prevents the unauthorized intentional removal or alteration of any copyright management information. Plaintiff alleges that such removal was done “intentionally, knowingly and with the intent to induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyrights in the Photograph [and that] Tibi … knew, or should have known, that such falsification, alteration and/or removal of said copyright management information would induce, enable, facilitate, or conceal their infringement of Plaintiff’s copyright in the Photograph.”

Plaintiff seeks Plaintiff’s actual damages and Defendant’s profits, gains or advantages of any kind which can be attributed to the falsification, removal and alteration of copyright management information, or statutory damages of at least $2,500 and up to $25,000 for each instance of  false copyright management information and/or removal or alteration of copyright management information.

Copyright registration of the Photograph is pending, but there is no doubt that it will be granted, as the picture meets and exceeds the threshold of originality. Copyright registration is necessary when suing for copyright infringement, but is not necessary to protect one’s work by copyright, nor it is necessary that the work contains a copyright notice. It suffices that the work has been fixed and that it is original.

The case will probably settle, but it is interesting to see that copyright infringement suits are still being filed against Defendants who found a work on social media and allegedly used it without permission. Tibi’s Instagram account alternates posts of Tibi’s own models with random photographs of buildings, furniture or landscapes, a sort of digital mood board echoing the colors and shapes of the garments. Both the photos of Tibi’s models and the random photos garner appreciative comments from Instagram followers. The fashion industry is indeed hungry for images and Instagram plays an increasing role in fashion companies ‘marketing mix.

Should Instagram put in place a proprietary licensing program? This may allow companies interested in featuring a particular photographs an easy way to secure a license.

Image courtesy of Flickr user Franklin Heijnen under a CC BY-SA 2.0 license.

Ladies [and Gentlemen] Now Let’s Get [IP] [“INFORMATION”]

Matthew Fulks, an independent filmmaker, had filed a copyright infringement suit against Beyoncé on June 8, 2016, claiming that the trailer (the Trailer) for her “Lemonade” movie (the Movie), which accompanied the April 2016 release of her Lemonade album, infringed on his copyright in the short movie Palinoia. Fulks created the seven-minute Palinoia movie in 2014, which the Seconded Amended Complaint (SAC) describes as “carefully selected but seemingly unrelated visuals in a rapid montage, with the recitation of a poem used as voiceover against a distinctive audio soundtrack.” The short movie “depict[s] the pain of a tumultuous relationship.”

On September 12, 2016, Judge Rakoff from the Southern District of New York (SDNY) granted Beyoncé’s motion to dismiss, writing a thoughtful and entertaining opinion, where Voltaire, Oscar Wilde, the Beatles, Tchaikovsky, Andy Warhol and Taylor Swift all made an appearance. The case is Matthew Fulks v. Beyoncé Giselle Carter-Knowles, Sony Music Entertainment and al., 1:16-cv-04278-JSR.

Judge Rakoff's Opinion is Hot Stuff

Elements of a Copyright Infringement Suit

If there is no direct evidence of copying, then plaintiff in a copyright infringement suit must prove that the defendant had access to the protected work and that there are substantial similarities of protectable material in the two works.

Plaintiff claimed that Defendants had access to his movie, as Plaintiff had submitted Palinoia to Defendant Sony/Columbia in July 2015, as part of an application for a directing job, and its receipt was acknowledged by email. Defendants did not deny this.

Plaintiff further alleged in the SAC that the Lemonade Trailer was substantially similar to Palinoia, including, but not limited to its “visual and auditory elements, visual and auditory sequences, themes, format, mood, setting, plot, and pace, all of which create a protectable total concept and feel” and that it was an unauthorized derivative work.

Judge Rakoff quoted the Second Circuit Yurman Design, Inc. v. PAJ, Inc. case, which defined substantially similar works as works which an "ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same,” and the Second Circuit  Peter F. Gaito Architecture case, which explained that the courts apply the substantial similarity test by "compar[ing] the contested design's total concept and overall feel with that of the allegedly infringed work… as instructed by our good eyes and common sense."

No Substantial Similarity in the Visual Elements

Plaintiff alleged that the Trailer contained nine visual elements substantially similar to Palinoia’s visual elements. These elements are (1) a head down near a graffiti wall; (2) red persons with eyes obscured; (3) parking garage; (4) stairwell; (5) black and white eyes; (6) title cards screen; (7) grass scene; (8) feet on street; and (9) side-lit ominous figures. The SAC has side-to-side screenshots from both works illustrating the allegations.

Judge Rakoff engaged in an analysis of these nine elements, but was not convinced that the Trailer infringed Palinoia. Instead, “[o]nce stripped of unprotected elements and scenes a faire, these scenes from Palinoia and the Trailer and Film have very little in common.”

Not the Same Aesthetic Feel

Judge Rakoff was not convinced as “Plaintiff's alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar. Moreover, to the very limited extent that there are even any superficial similarities, these are overwhelmed by the works' vastly different creative choices and overall aesthetic feel.”

Judge Rakoff quoted the SDNY LaChapelle v. Fenty case, where the court explained that “[o]riginality in rendition may reside in the photographer's selection of lighting, shade, lens, angle, depth of field, composition, and other choices that have an aesthetic effect on the final work." In other words, you can have the idea of filming a parking garage, a grass scene or a distressed person heads down near a graffiti wall, but it is the expression of this idea which is protected, not the idea itself. As both works had been expressed in different ways, there were not similar.

For example, as explained by Judge Rakoff, when analyzing the first visual element claimed as original by plaintiff, a person seen head down near a graffiti wall, the concept of a "state of distress" is an unprotected idea, and it “flows naturally and necessarily that a distressed character would be leaning (as opposed to dancing) against something stable (as opposed to delicate) and that his or her head would be down (as opposed to up.)” Instead, what was essential as to whether there was infringement is the comparison of the way the two scenes were filmed. Because the scenes were aesthetically different, there was no infringement.

Judge Rakoff analyzed all the nine visual elements in turn, and found that none of them had the same aesthetic than the Trailer. Therefore, he found them not similar with the Lemonade Trailer scenes.

No Substantial Similarity in the Auditory Elements

Plaintiff also alleged in his SAC that both works included “the voiceover of a narrator reciting poetry over the sounds in the background” and that the audio sequences of both works were substantially similar, as they both followed “a similar pattern in which harsh noises are separated by calmer sounds in a substantially similar time table” and both included “crescendos and decrescendos.”

But for Judge Rakoff, “no reasonable jury, properly instructed, could find infringement based on plaintiff's… alleged similarities… [in] the works' audio… The idea of juxtaposing poetry and disharmonious sound is not protectable.” Plaintiff must prove instead that the way he expressed this idea, such as his choice of poetry and sound, has been copied. However, Plaintiff did not prove this in this case.

Not the Same Total Concept and Overall Feel

For Plaintiff, the mood, setting, pace, and themes of both works were substantially similar which contributed “to the overwhelming similarity of total concept and feel.” Both moods were “heavy, dark, and angst-laden.’” Both settings included similar environments, such as an empty dark parking garage, grass field, and a stairwell. The pace of both works was “a rapid procession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” Also, both works had different themes “destruction, alienation, heartbreak, and chaos versus order.”

But Judge Rakoff noted, somewhat ironically, that:

“[a]pparently intent on exploring the boundary between idea and expression, plaintiff alleges that the works share the same narrative theme ("a struggle of a relationship") and the same aesthetic mood and pace ("a pattern of successive montage of abstract scenes, with unknown or unclear meanings, pieced together in 'short takes'"). These alleged similarities fall firmly on the side of unprotected ideas. The "struggle of a relationship" is a concept familiar to us all, and plaintiff is not the first individual - or artist - to comment on it. See, e.g., R. Hart-Davis, The Letters of Oscar Wilde 621 (1962) ("[H]earts are made to be broken"); Taylor Swift, "I Knew You Were Trouble"(2012).”

Plaintiff argued that the "race of the characters in the [Film] is irrelevant to the total concept and feel of a film about relationships.… Judge Rakoff wrote that the Lemonade Movie is not just about relationships, but instead:

“depicts the protagonist's journey from a particular perspective: that of an African-American woman in a predominantly African-American community… The Film repeatedly references and dramatizes generations of African-American women, and in the background of one scene, the observer hears an excerpt from a speech by Malcolm X to the effect that the Black woman is the most "neglected" person in America…. This all takes place against what defendants accurately characterize as a "Southern Gothic feel."… The settings transition between areas of New Orleans, the abandoned Fort Macomb, and an Antebellum plantation. These significant differences in characters, mood, and setting further distinguish the total concept and feel in the [Lemonade] Film from that in Palinoia.”

Plaintiff also argued that both works "portray a struggle of a relationship; the reasons for such struggle are unclear and irrelevant." But for Judge Rakoff, “[t]his is like saying that Casablanca, Sleepless in Seattle, and Ghostbusters are substantially similar despite the different motivating forces behind the struggles there portrayed (Nazis, capitalism, and ghosts, respectively).”

Trailer, Movie, Album

Judge Rakoff remarked “that the differences in total concept and feel are initially more pronounced between Palinoia and the [Lemonade] Film than between Palinoia and the [Lemonade] Trailer” but that “the difference in overall concept and feel between Palinoia and the [Lemonade] Trailer still overwhelms any superficial similarities.”

I was surprised to read that Plaintiff claimed that the Trailer for the Lemonade Movie had infringed his own short movie, as it was meant to be a teaser announcement for both the Movie and the Lemonade album. As noted by Judge Rakoff, the Lemonade Movie “marks the protagonist's progression through thematic headings, and narrates it with songs from the Lemonade album.” The Trailer shows scenes of the 58-minute Lemonade Movie, which itself follows the sequence of the Lemonade album, which itself narrates a story, from one song to another. There are several layers of creation behind the trailer, the originality of which stems from both the originality of the Lemonade Movie and the Lemonade album. The hurdles of proving substantial similarities between the trailer, a derivative work of an original work featuring another original work, and the short film, an original work in itself, was therefore very high.

Image of hot sauce is courtesy of Flicker user Joe King under a CC BY 2.0 license.